The Ninth Circuit upheld the conviction of Robert Burkett for possession of a gun by a convicted felon. Burkett was a passenger in a speeding vehicle. An officer turned on his overhead light to stop the vehicle but it took an unusually long time to stop. (eight tenths of a mile.) While the officer was stopping the vehicle he saw Burkett in the right front passenger seat making furtive movements.

After Burkett was charge he moved to suppress the gun on Fourth Amendment grounds. The Fourth Amendment protects us against unreasonable searches and seizures.

In the landmark 1968 case of Terry v. Ohio the Supreme Court ruled that an officer can stop and frisk a person if the officer has a reasonable suspicion that the person is involved in a crime and is armed and dangerous. While there was no belief that Burkett was involved in a crime, the Supreme Court ruled last year in Arizona v. Johnson that if an officer has a reasonable suspicion to stop a vehicle for a traffic violation the seizure of all of the passengers in the vehicle is legitimate and that if the officer had a reasonable suspicion to believe that a passenger was armed and dangerous the officer could frisk the passenger.

The Ninth Circuit found that the officer had a reasonable suspicion that Burkett was armed and dangerous and therefore the frisk of Burkett was legitimate. Therefore, the gun found during the frisk could be used at trial. Not only did the driver of the car take an unusually long period to pull over but Burkett made furtive motions while the driver was pulling over. The furtive motions led the officer to believe that Burkett was attempting to hide a gun. Furthermore when the officer asked Burkett what he was doing prior to the car stopping Burkett said “nothing” while the officer knew that the “furtive” conduct meant he was doing something. The officer was also concerned that after he told Burket to exit the car, Burkett used his left arem to open the right side door, hiding his hands and part of his jacket. Thus despite Burkett’s innocent explanations for his behavior the officer had a reasonable belief that he might have a weapon.

Following up on the recent release of statistics showing that the number of African Americans and Latinos stopped and searched by New York City police vastly exceeds their percentage of the population, the New York Civil Liberties Union filed suit against the city claiming that under state law the names and other identifying information regarding those searched but for whom charges are later dismissed must be purged from the records. In the first three months of this year 9% of those searched by New York police officers were white, 33% were Hispanic and 52% percent were black.

But ironically even if the suit is won, the much larger group of people who are searched but never charged will remain in the database. In 2009 police reported 575,000 people were stopped and frisked. Since 2004 the police admit to stopping and frisking three million people. Over eighty per cent of these were either African American or Hispanic. But only six per cent of these people are charged. The percentage that the suit affects would be considerably less than six per cent of those stopped and frisked.

Monday, Bob Herbert had some scary statistics in his New York Times column. He pointed out that that between 2004 and 2009 New York City police detained nearly three million people, frisking many of them and inputting their names into a massive computer file.

Less than fifteen percent of those searched had committed any crime or were in possession on of contraband. To compound the problem the vast majority of those searched were members of minorities. African Americans were stopped 1,444,559 times. Hispanics were stopped 843,817 times and whites were stopped only 287,218 times.

Were the stops legal? If the people stopped gave consent to the search they were legal. Why anyone would give consent I don’t know. I always tell clients to tell any police officer that attempts to search them that they are not giving consent. I doubt this stops many searches but maybe it makes an officer think twice before committing an illegal search. The Constitution is clear that people do not have to give consent. But many people, particularly aliens and minorities believe that if a police officer asks them for permission to search they have to give it.

Also those on parole or probation often have a search clause requiring them to permit peace officers to search them.

But in many other cases they are not legal unless the police have a reasonable suspicion that the person is involved in criminal behavior. This only permits a detention. To frisk the person the police must additionally have a reasonable suspicion that weapons will be found.

Individuals illegally searched have the right to sue but generally there is not enough money involved to find an attorney who will take the case.

The best solution would be to have all detentions and searches recorded on video tape. But this is rarely done. This could lead to disciplinary acts against police officers who illegally stop and frisk citizens. It would also make it easier to sue the officers and the police departments for illegal searches and detentions. It would, of course, also make it easier to convict those who are guilty and to justify legal searches. But police departments either don’t have the money for cameras or they are afraid of the outcome.

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In United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?

The Eighth Circuit Court of Appeals found that reasonable suspicion existed to pat down Deonta Lemont Stigler after the police were called to a neighborhood known for drug sales regarding a fight between three African American men.

When Officers Michael Dixson and Ryan Doty arrived on the scene they saw two African American men on the sidewalk. One of the men, Stigler ran across the street and then started walking. Dixson asked Stigler about a fight. Stigler, according to the decision, threw a plastic baggie, later determined to have marijuana in it on the ground. Dixson then initiated a Terry stop and a pat search. A Terry stop requires that an officer have a reasonable suspicion that a crime occurred and that the person stopped has a connection to the crime. It can only last long enough for the officer to investigate the crime. A pat search can occur simultaneously to the stop as long as the police officer has a reasonable suspicion that the person stopped has a weapon. During the pat search a gun was found.

Stigler moved to suppress the gun on the basis that the police did not have a reasonable suspicion that he was involved in a crime or that he had a weapon. After the suppression motion was denied Stigler plead guilty, reserving the right to appeal the denial of the suppression motion.

On appeal the court found that based upon the “totality of the circumstances” the Terry stop and the pat search were legal. The court based its decision on the throwing down of the baggie and Stigler’s startled demeanor, along with Stigler’s initial running away and being in an area known for drug transactions. The pat down according to the court was justified by the report of a fight and fear that a weapon may have been involved.

My question is why did Stigler throw the baggie with marijuana on the ground or did he actually throw the baggie down? There was no trial so the “facts” before the trial and appellate courts did not include a trial transcript. Most likely the Eighth Circuit was working with the transcript of a hearing held on the defendant’s motion to suppress the evidence. Its possible that the defendant did not testify at the hearing. In many cases the defense attorney and the defendant decide that the defendant should not testify at a motion to suppress evidence since the defendant’s testimony at the hearing can be used by the district attorney for cross examination at trial. The defendant would not want to answer questions such as what was in the baggie or why were you carrying a gun? If so the only evidence was the police officer’s testimony. But even if the defendant testified at the hearing the court would give additional weight to the officer’s testimony since in a case where the defendant has plead guilty and the District Court denied the motion to suppress the appellate court must decide factual issues in favor of the winning side (the prosecution in this case) in the District Court.

Unless you believe that police officers always tell the truth, you must have some doubt that Stigler threw the marijuana on the ground. Stigler had nothing do gain by throwing it down. After all he still had the concealed weapon. And the police officer could not justify the search without the marijuana being thrown on the ground. This is not to say that defendants never do stupid things but it certainly raises a doubt about the search.

Wednesday we looked at Texas v. Nguyen where a Texas statute requires confessions to be taped. In Massachusetts the state Supreme Court, using its supervisory powers over the courts mandated, that upon the request of a defendant a court must give a cautionary instruction to warn the jury of the danger of using an unrecorded confession. However that does not apply in Federal Courts.

Today we will look at United States v. Meadows, a case which was decided by the First Circuit Court of Appeals, Wednesday. It involves a charge of possession of a gun by a convicted felon. Timothy J. Meadows was arrested in Brockton, Massachusetts for possession of a gun by a convicted felon and sentenced to 15 years in prison.

Timothy Meadows and John DePina were passengers in a car driven by Timothy’s brother, Shawn. Brockton Police Officer, Richard Gaucher stopped the vehicle at the entrance to the Battles Farm housing complex for minor traffic violations. As soon as the car stopped, Timothy got out of the vehicle and began to run. Gaucher called for back-up officers. They questioned Shawn who told them that their sister, Tia, lived in the complex and that Meadows was the person who got out of the car and ran. Gaucher radioed in the information and he learned that a domestic incident had been reported earlier in the day at the residence. Gaucher noted that Meadows ran in a direction that would take him away from Tia’s residence. They searched Shawn and DePina. They found two bullets on DePina but they did not find a gun in the car. At this point the officers radioed that Meadow might have a gun. They went to Tia’s residence. She told them that Meadows was upstairs. They called upstairs and asked Timothy to come downstairs. They handcuffed him and took him outside to search him.

A mother and her daughter who lived in the complex told the officers that they saw Meadows get out of the car, run towards a particular area and fall. The officers went to the place where Meadows fell and found the gun.

At trial and on appeal Meadows challenged the admission of statements he made at the time of the arrest. He claimed that he was effectively under arrest at the time he was handcuffed. The handcuffing occurred prior to the finding of the gun and therefore at the time he was handcuffed probable cause did not exist to arrest him. If this is true, statements he made to the police, after his arrest but before he was read his Miranda rights should be excluded at trial as the fruit of an illegal arrest.

The court admitted that handcuffing is evidence, though not conclusive evidence that an individual is arrested. The government argued, and the court found, that an arrest did not occur. A limited Terry stop may be made for investigative purposes when the police have a reasonable suspicion that a crime occurred and that the detainee committed the crime. Such a stop is only valid as long as the police actions are within the scope of the reasons that led to the stop. However, it may be reasonable to restrain an individual during a Terry stop for officer safety reasons if the officers have specific reasons for believing that they may be endangered. In this case bullets were found and there had been a domestic incident at the house earlier in the day. The court found that the officers had a reasonable suspicion that a gun might be nearby and therefore handcuffing was reasonable. Furthermore the fact that Meadow ran when the car was pulled over was evidence that he might try to escape and therefore it was justified to restrain him.

Meadows also claimed that the statement should have been taped. But the court found that it is not bound by Massachusetts state law and that as an intermediary appellate court it does not have the authority to make such supervisory orders without directions from the Supreme Court or Congress.

Meadow objected to the jury being told that he is a convicted felon. Of course he was charged with possessing a gun by a convicted felon. He wanted the jury to be told that he was of a class of people that cannot possess a gun. However based upon precedent the court found that the District Court made the right decision in telling the jury that he was a convicted felon but not telling them the nature of the prior conviction.

In the seminal case of Terry v. Ohio the Supreme Court held that their are three levels of contact between the police and civilians and for each level of contact their is a corresponding permissible level, under the Fourth Amendment, of invasive behavior. The lowest level involves a consensual encounter. In this case no force is used and any search must be agreed to by both sides. At the other extreme the police have probable cause to arrest someone. Since the police have probable cause to arrest someone they can use force to search the individual pursuant to the arrest. In the middle is what has been called a Terry search. In the Terry search the police have a reasonable suspicion that a crime has been committed or is about to be committed and that the individual is involved in the crime. In such cases they may detain the individual for a limited period of time in order to verify their suspicion. If they also have a reasonable suspicion that the person might be armed, they may frisk the individual for their own safety.

Terry searches have been quite useful to law enforcement in obtaining evidence of a crime and in arresting individuals. While individuals have a right not to answer questions during Terry searches people are either unaware of their rights or try to talk their way out of being arresting in many cases. Usually, in such case they give the officer probable cause to arrest them and the case is over.

The problem from a legal point of view is the dividing line between the three levels. Often the line is thin and police anxious to make an arrest either detain an individual without a reasonable suspicion or arrest the individual without probable cause. Of course no one wants the police to randomly detain, pat search or perform a full search without the appropriate level of of suspicion. This ends up with an illegal invasion of one’s civil rights.

Since evidence obtained as the result of an illegal detention or search is inadmissible in court the issue is frequently raised during a case and often results in appellate decisions. In a recent case that came out of Massachusetts the First Circuit Court of Appeals upheld a Terry stop and a pat search for weapons in which a gun was found on Samnang Am.

The police alleged six reasons for the stop. They were that the search was in a neighborhood known for a high crime rate, Am was a known member of a gang, Am’s criminal record, the fact that he was on probation, Am had been found with a gun before and a tip received by one of the officers that Am had been involved in a recent shooting. The court found that while the location of the search, ie in a high crime neighborhood, claimed by an opposing gang could not in and by itself provide a reasonable suspicion it could be considered in connection with the other factors. Also, the tip could not be used because there was no way to verify it. But even excluding the tip the court found that the officer had a reasonable suspicion to detain Am.

At the time of the detention Am put his hands into his pockets. This provided the police with a reasonable suspicion that he might be armed and therefore the pat search was legal. Since this led to his arrest the game was over.